The U. S. Department of Education (the Department) is in the process of developing regulations to implement the changes that the Violence Against Women Reauthorization Act of 2013 (VAWA) made to the Clery Act. On September 19, the Department published a Notice in the Federal Register announcing our intention to develop proposed rules implementing the changes to the Clery Act and soliciting nominations for non-Federal negotiators. The negotiation sessions are scheduled to begin in mid-January.

In advance of negotiations, the Department held three conference calls with institutional administrators, campus public safety officials, and advocacy groups in order to learn more about their concerns. These calls were not part of the formal negotiated rulemaking sessions, but instead provided an informal opportunity for the Department to listen to stakeholders’ concerns and to learn more about the issues involved. Below is a summary of the December 11, 2013, call with institutional administrators. The summaries of the call with campus public safety officials and the call with campus safety advocates are available.

General

The institutional administrators participating on this call raised a variety of concerns regarding the implementation of the changes that VAWA made to the Clery Act. In particular, participants wished to know, by the end of the regulatory process, how new crimes would be reported, how new terms would be defined, how VAWA would impact institutional disciplinary proceedings, and how the Clery Act will interact with institutional responsibilities under Title IX. The participants urged the Department to provide timely, clear information as to how they should comply with the new requirements, given that institutions must begin to comply with the statute before a final regulation is in place.

Procedures/Reporting

The participants in the call shared similar concerns regarding the new program and reporting requirements. Specifically, the issues and questions raised included:

Will the sexual assault training be mandatory and, if so, how will institutions be expected to track participation?

How should institutions report stalking dating/domestic violence and how should they count those offenses?

What would be the institution’s responsibility in cases where an incident occurs off of an institution’s Clery geography and accused is not a student?

Who would be considered a mandatory reporter? The participants noted that there are discrepancies between the list of mandatory Clery Act reporters and the list of mandatory Title IX reporters. For example, faculty members are not considered Campus Security Authorities under the Clery Act, but they are under Title IX.

What would trigger an institution’s obligation to take action? Where would the complaint have to come from? Who would be required to report the crime?

Would crimes be counted twice? If an individual were the victim of domestic violence, sexual assault, and homicide, would the crime be counted three times?

If a victim does not want to go to law enforcement, what would be the institution’s reporting obligation? How would this be balanced against state reporting requirements?

What would be an institution’s obligations regarding cyberstalking, especially with regards to jurisdictional issues?

What would be the geography for crimes of domestic violence, dating violence, and stalking? Would the Department base it on Title IX or on Clery geography?

To what extent would an institution be responsible for a coordinated community response?

Definitions

Several participants expressed concerns with and questions about the definitions used in VAWA. Others provided suggestions for the Department’s consideration. Among their concerns:

What is the definition of consent? How would this definition be affected when substances are involved?

What is the definition of sexual assault?

The definition of rape should be updated to reflect recent changes made by the FBI to acknowledge that both genders can be victims or perpetrators, among other changes.

For the purposes of the new training provisions, what is the definition of an incoming student? Who is considered to be a new employee?

Provide clarity in the definition of stalking, particularly cyberstalking.

Provide clarity in the definitions of dating violence and domestic violence.

What does “coordinated community response” mean, and to what extent are institutions responsible for coordination?

Student Rights/Disciplinary Procedures

The administrators also expressed a number of concerns regarding the new requirements for campus disciplinary proceedings. The most common concerns centered on the rights of both the accuser and the accused to have advocates present during proceedings and the appeals process. In particular, the participants raised concerns including:

Whether institutions are now required to have an appeals process, even if they didn’t have one before;

Whether institutions would be required to use jurisdictional definitions for VAWA crimes in their own disciplinary procedures;

What obligations would an institution have with respect to disciplinary proceedings when an incident happens off the Clery geography and the accused is not a student?

Could the written notification of outcome requirement be satisfied by simply notifying the accused/accuser whether the claim has been substantiated or not substantiated? Along these lines, would institutions need to specify what disciplinary action was imposed?

What does “simultaneously informed, in writing” means in terms of outcomes ((f)(8)(B)(iv)(III).

Makeup of the Negotiated Rulemaking Committee

One administrator expressed concern that the student conduct administrators were underrepresented on the negotiated rulemaking committee. In response, the Department noted that, while we believed that the negotiators at the table have the experience to speak to the concerns of student conduct administrators, members of the public may petition for a seat on the Committee at the start of the negotiations. The Department also indicated that there are multiple ways to participate in the process, including collaborating with negotiators at the table that share his constituency’s viewpoint, participating in informal workgroups in between sessions, voicing his concerns during time reserved for members of the public to comment each day of each session, and submitting public comments in response to the Notice of Proposed Rulemaking.

Association Comments

One higher education association expressed concerns involving timing. Specifically, the association wondered when institutions have to comply, how institutions can be expected to be in compliance by March 2014 if the regulatory process is happening now, and what the definition of “best efforts” is.

Grantees

One recipient of a grant from the Department of Justice expressed concern about the lack of continuity between Department of Justice requirements for VAWA grantees and the mandatory educational piece in the legislation. This grantee requested guidance on ensuring that his institution is fulfilling the obligations of the grant and of VAWA.